Citation Nr: 0208537
Decision Date: 07/26/02 Archive Date: 08/02/02
DOCKET NO. 97-00 771 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office in
Pittsburgh, Pennsylvania
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
calluses on both feet.
(The issue of entitlement to service connection for calluses
of both feet will be the subject of a later Board decision.)
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Suzie S. Gaston, Counsel
INTRODUCTION
The veteran served on active duty from December 1945 to April
1947 and from September 1949 to July 1953. He has been
represented throughout his appeal by The American Legion.
Entitlement to service connection for callosities of the feet
was previously denied by the Department of Veterans Affairs
(VA) in a rating decision of October 1954. The veteran did
not appeal that determination within one year of the notice
thereof, and that decision became final.
This current matter came before the Board of Veterans'
Appeals (hereinafter Board) on appeal from a rating decision
of February 1996, by the Pittsburgh, Pennsylvania Regional
Office (RO), which denied the veteran's attempt to reopen his
claim of entitlement to service connection for callosities of
both feet. Following the receipt of additional medical
records, rating actions of April and June 1996 confirmed the
denial of the veteran's attempt to reopen his claim. The
notice of disagreement with that determination was received
in October 1996. A statement of the case was issued in
December 1996, and the veteran's substantive appeal was
received in December 1996. The veteran appeared and offered
testimony at a hearing before a hearing officer at the RO in
January 1997.
In December 1998, the Board remanded the case to the RO for
further evidentiary development. The appeal was returned to
the Board in June 2002.
The Board is undertaking additional development on the issue
of entitlement to service connection for calluses of both
feet pursuant to authority granted by 67 Fed. Reg. 3,099,
3,104 (Jan. 23, 2002) (to be codified at 38 C.F.R. §
19.9(a)(2)). When it is completed, the Board will provide
notice of the development as required by Rule of Practice
903. (67 Fed. Reg. 3,099, 3,105 (Jan. 23, 2002) (to be
codified at 38 C.F.R. § 20.903.) After giving the notice and
reviewing any response to the notice, the Board will prepare
a separate decision addressing this issue.
FINDINGS OF FACT
1. By a rating action in October 1954, the RO denied service
connection for callosities of both feet; the veteran did not
appeal that determination within one year of the notice
thereof and, under the law, the decision became final.
2. The evidence received since the October 1954 decision,
which includes military records, lay statements, VA treatment
records, private medical evidence, and hearing testimony, is
not cumulative and bears directly and substantially on the
veteran's claim, and therefore must be considered in order to
fairly decide the merits of the claim.
CONCLUSION OF LAW
Evidence received since the October 1954 rating decision that
denied entitlement to service connection for calluses of both
feet is new and material, and the veteran's claim is
reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991 & Supp.
2001); 38 C.F.R. §§ 3.104, 3.156 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Pertinent Laws, Regulations, and Court Precedents.
In order to establish service connection for a claimed
disability, the facts, as shown by the evidence, must
demonstrate that a particular disease or injury resulting in
current disability was incurred during active service or, if
preexisting active service, was aggravated therein. 38
U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2001); 38 C.F.R.
§ 3.303 (2001).
When a disease is first diagnosed after service, service
connection may nevertheless be established by evidence
demonstrating that the disease was in fact incurred during
the veteran's service, or by evidence that a presumption
period applies. 38 C.F.R. §§ 3.303, 3.307, 3.309 (2001).
Regulations also provide that service connection may be
granted for any disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d) (2001). A determination of service
connection requires a finding of the existence of a current
disability and a determination of a relationship between the
disability and an injury or disease incurred in service.
Watson v. Brown, 4 Vet. App. 309, 314 (1993).
When the Board or the RO has disallowed a claim, it may not
thereafter be reopened unless new and material evidence is
submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (2001).
New and material evidence means evidence not previously
submitted to agency decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001);
see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
During the pendency of the veteran's appeal, the VCAA, Pub.
L. No. 106-475, 114 Stat. 2096 (2000), was signed into law.
This legislation is codified at 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5106, 5107, 5126 (West Supp. 2001). It
essentially eliminates the requirement that a claimant submit
evidence of a well-grounded claim, and provides that VA will
assist a claimant in obtaining evidence necessary to
substantiate a claim, but is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. It also includes new notification provisions.
Regulations implementing the VCAA (codified at 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp.
2001)), are now published at 66 Fed. Reg. 45,620, 45,630-32
(Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326). Except as specifically noted,
the new regulations are effective November 9, 2000. The
provisions of the regulations applicable to attempts to
reopen finally disallowed claims are effective for claims
received on or after August 29, 2001. Since the Board is
reopening the veteran's claim, he does not require additional
assistance in substantiating that part of his claim. See
38 U.S.C.A. § 5103A(a)(2) (West Supp. 2002) (VA is not
required to provide assistance when it would not aid in
substantiating the claim).
As effective prior to August 29, 2001, new and material
evidence is defined as evidence not previously submitted to
agency decisionmakers which bears directly and substantially
upon the specific matter under consideration; which is
neither cumulative nor redundant; and which, by itself or in
connection with evidence previously assembled, is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001).
In determining whether new and material evidence has been
presented, VA must initially decide whether evidence
submitted since the prior final denial is, in fact, new.
This analysis is undertaken by comparing newly received
evidence with the evidence previously of record. After
evidence is determined to be new, the next question is
whether it is material.
The credibility of new evidence is assumed for the limited
purpose of determining whether it is material. Justus v.
Principi, 3 Vet. App. 510 (1992). As noted above, under the
precedent decision of the Court in the Evans case, supra, in
order to reopen a previously and finally denied claim there
must be new and material evidence entered into the record
since the most recent denial on any basis, either on the
merits or on an attempted reopening. Id. at 285.
II. New and material evidence to reopen the claim for
service connection for calluses on both feet.
When this case was considered by the RO in October 1954, the
record showed that the veteran had two periods of active
duty. The service medical records for the first period of
service, including the enlistment examination conducted in
December 1945 as well as the separation examination of April
1947, were negative for any complaints, findings or diagnosis
of any problems involving the veteran's feet, including
calluses on both feet. The veteran reentered active duty in
September 1949. In February 1950, the veteran was seen at a
dispensary, at which time it was noted that he had heavy
calluses on the soles of both feet; it was recommended that
the calluses be trimmed and the veteran use soaks. The
separation examination, conducted in June 1953, was negative
for any complaints, findings or diagnoses of calluses on the
feet.
The veteran was afforded a VA compensation examination in
September 1953, which consists of an evaluation for a
psychiatric disorder and fracture of the right heel. This
report does not reflect any complaints or findings referable
to calluses on the feet. Subsequently, the veteran underwent
a dermatological consultation in September 1954, at which
time it was noted that the veteran had multiple callosities
on the soles of both feet. The examiner stated that he saw
nothing from the dermatological standpoint to cause any
disability.
By a rating action in October 1954, the RO denied the
veteran's claim of entitlement to service connection for
callosities of the feet, based upon a finding that the
evidence did not support his allegation of service
responsibility for the condition at issue.
The evidence received since the October 1954 decision
essentially consists of: a VA compensation examination report
dated in May 1969; a private medical statement from Dr.
William D. Harvey, dated in December 1969; a VA examination
report dated in January 1973; VA progress notes dated from
August 1979 to March 1981; a VA hospital report dated in
March 1981; a private hospital report dated in March 1983; VA
outpatient treatment reports dated from March 1983 to
February 1984; VA examination reports dated in March and
April 1984; a VA treatment report dated in May 1984; VA
outpatient treatment reports dated from February 1983 to
December 1984; a VA hospital report dated in October 1985; VA
medical records dated from October 1985 to November 1985; a
VA compensation examination report dated in June 1986;
medical records dated from March to May 1984; VA outpatient
treatment reports dated from April 1994 to June 1995; VA
outpatient treatment reports dated from February 1994 to
January 1995; an undated private medical statement from Dr.
Thomas L. Hoffman; VA outpatient treatment reports dated from
February 1994 to January 1995; daily sick reports for the
period from November 1950 to September 1951; a transcript of
the veteran's testimony offered at a personal hearing held in
January 1997; private treatment reports from Dr. Hoffman,
dated from December 1995 to December 1996; and a statement
from the veteran received in March 1999.
The additional evidence submitted in order to reopen the
veteran's claim for service connection for calluses on both
feet includes the veteran's testimony that he developed
calluses during basic training; he argued that the GI boots
issued were so large that his feet slid enough to result in
calluses, and he was placed on profile due to the calluses on
his feet. It is noteworthy that the post-service medical
records show that a VA examination in September 1954 also
reported findings of multiple callosities on the soles of
both feet. In addition, service medical records clearly show
that the veteran was seen in February 1950 and was found to
have heavy calluses on the soles of both feet; trimming and
soaks were recommended. This fact goes to support the
veteran's contention that he developed calluses during basic
training, and continued to suffer from calluses after service
which he treated himself. This evidence is relevant and
probative of the question of whether the veteran developed
calluses during his period of active duty. Hodge, 155 F.3d
at 1363, (Observing that new evidence could be sufficient to
reopen a claim if it could contribute to a more complete
picture of the circumstances surrounding the origin of a
veteran's injury or disability, even where it would not be
enough to convince the Board to grant a claim).
The Board finds that some of the additional evidence
submitted to reopen the claim for service connection for
calluses on both feet, bears directly and substantially upon
the specific matter under consideration, is neither
cumulative nor redundant, and by itself or in connection with
evidence previously assembled is so significant that it must
be considered in order to fairly decide the merits of the
claim. Accordingly, the Board finds that the claim for
service connection for calluses on both feet has been
reopened, and that de novo review is warranted.
ORDER
To the extent the Board has determined that new and material
evidence has been submitted to reopen the veteran's claim of
service connection for callosities on both feet, the appeal
is granted.
Mark D. Hindin
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.